Book Review: Richards’s Fundamentalism in American Religion and Law

“Fundamentalist religious doctrines and autocratic and dictatorial rulers will reject the ideas of public reason and deliberative democracy.”

Mr. Richards takes the epigraph (in full, above) to his volume from a late essay by John Rawls, “The Idea of Public Reason Revisited,” in which fundamentalist doctrines—whose comprehensive vision of the truth conflicts with the principles of deliberative democracy—are presented as a threat to a reasonable and just society. Rawls was content to state his case, as the epigraph shows, in a measured tone. One finds less restraint and greater risk in Richards, whose spirited challenge to religious and legal fundamentalism is noisy, passionate, and deeply personal.
As the courts have led the United States closer to civility, permitting women and gay men to participate in democracy as free and equal citizens, the reactionary forces of fundamentalism have struggled to keep the newly liberated in a state of “moral slavery” (e.g., 31) where women are considered weak-willed and best kept for child-rearing, and homosexuality a vice. “Moral slavery” is the status quo ante bellum, a return to the hierarchical order that governed before the culture wars, before the civil rights movement and the progressive recognition of the right to intimate life. Each fundamentalism is a project of restoration: originalism that reads the Constitution as though over Madison’s shoulder; New Natural law that draws moral principles from the vanguard of the 13th century; Protestant fundamentalism that insists on demonizing homosexuality based on a literal reading of scripture; the theology of Joseph Smith that promotes the sexual order of the (original) patriarchs. These Edenic visions of a world that once was ordered as fundamentalists would have it ordered—these rejections of Rawls’ principle of public reason—are what Richards finds so dangerous, and against which he writes so movingly.

Even a sympathetic reader will have quibbles. When, for instance, Richards writes in his critique of the unreasonableness of originalism that “[n]o approach to constitutional interpretation may be regarded as reasonable if its leading advocates never pursue its requirements consistently” (54), one wonders what he means by “leading advocates,” “never pursue,” “requirements,” and “consistently.” So much has been written about originalism that one is inclined to believe it exists, but Richards’ slippery language does little to raise the phantom, and does far less to dispel it. The same may be said for fundamentalism and for patriarchy, neither of which are well defined. The word “originalism” is, in the volume under consideration, a circumlocution meant to call forth Scalia and Thomas, Bork and Berger without naming them individually. Too much is made of the ideologues whose personalities are, after all, public projections of greater intellectual consistency than is to be found in the projectors, and too little is made of fundamentalism as a public event. One may speak about John Finnis and Billy Sunday, but having done so what has been said? Have the prejudices of the average fundamentalist, whoever or whatever that is, come into clearer focus? Are the names of “leading advocates” the only clarity to be had?

Between the ideologue and the public, between the overdetermined and the vague, Richards finds his way forward by the light of psychology: “How is it possible that in an advanced, well-educated nation like the United States, in which there is such a deep consensus about the enduring values of our democratic constitutionalism, fundamentalism should flourish in both religion and law?” (5). Passing over the uncertain phrases “deep consensus” and “enduring values,” one faces an absurd, patronizing, and perfectly legitimate question: Why do fundamentalists believe the things they believe? Of course each fundamentalist has an answer, and the answers are as numerous as the adherents. Some are born into their beliefs, some born again into them. The cocktail party answer—unfit for mixed company, to say nothing of scholarly publication—is that fundamentalists are damaged, heirs to and fathers of a neurosis. Or, in Richards’ language: Fundamentalists are sufferers of a “traumatic [break] in personal relationships that [leads] to an identification with patriarchal voice and a resulting dissociation that not only cannot connect with reasonable dissenting voices but also seeks to repress them” (260).

Richards, who conducts here his own status quo ante bellum, claims the war of fundamentalists against reason—the racism, sexism, homophobia—began in earnest with the celibacy of Augustine, the most baleful “traumatic break.” When Augustine renounced sexual love for his office he learned to “kill all sympathy and its expression [. . .] thereby forging the enemies and scapegoats patriarchy requires and visiting on them illimitable atrocity” (35). A quote from, of all people, Heinrich Himmler follows and for a discernible reason: The scapegoats Augustine drove into the wilderness are the Jewish people, “carnal Israel,” for whom sexual health is a virtue. Richards hangs much of his argument on the phrase “carnal Israel,” and it deserves attention. At least twice “Israel secundum carnem” appears in Augustine’s writing, most importantly in Tractatus Adversus Iudaeos and in De Civitate Dei contra Paganos. The phrase is taken from the first epistle to the Corinthians where Paul writes of “Israel kata sarka,” that is, Israel that follows after, or acts with deference to, the body. Neither Paul nor Augustine appears to make an accusation of sexual incontinence. Rather they accuse the Jewish people of fundamentalism, of stubborn adherence to the body of the law—the letter that kills—and rejection of the law’s animating spirit, Jesus. For Richards however “carnal Israel” marks a sexual abjectification of the Jewish people that precedes persecution and as a consequence he fails to take the phrase for what it is: the banal anxiety of the orthodox. Had Augustine never lived would historians need to invent him to explain the Holocaust? It is unlikely. Even if one grants Richards the existence of a patriarchal tradition in the West, Augustine is at best the chief of the early bureaucrats, and is antecedent (however directly) to the fundamentalists in contemporary America.

The cultural logic of patriarchy, whether the child of Augustine or of Origen, persists, and does so by the strength of inheritance and by a rite of passage, the “traumatic break” common to each fundamentalist. That is, Richards puts on the couch not only a tradition but each inheritor of the tradition. To demonstrate his claim Richards searches the lives of those with whom he disagrees for evidence of trauma and the development of “classically patriarchal” (220) psychology. In the biography of Justice Thomas he finds an unknown father, an estranged mother, a demanding grandfather, and racism at Yale Law School. For these reasons and others Richards concludes that Thomas is wounded, angry, lacking “ethical intelligence” (221) and “moral feeling”: the “tangled psychology of a humiliated manhood” (223). He is not a man but an epitome, the silent face of patriarchy. What, a reader may ask, about Thomas’ marriage to a white woman? Is this an instance of his ability to overcome the restrictive laws into which he was born? Or is Thomas imposing domestic authority over a white woman as revenge for racism? It is impossible by Richards’ method to say, for Richards has no method here. He merely tailors the evidence to suit the proof. Justice Scalia’s childhood was stable, yet had it not been stable one is certain the evidence would be adduced.

The anti-patriarchal man, the glittering President Obama, and his challenge to patriarchy is the ostensible subject of Richards’ book. The President is featured in the subtitle, he appears on the cover sharing a look of mutual admiration with Justice Sonia Sotomayor (a vision straight from the nightmares of Glenn Beck), but is discussed by Richards only briefly at the start of the book and for ten pages near the end. Obama’s biography is mined and various facts from his youth and early adulthood are offered to convince the reader that “Obama is conspicuously not a patriarchal man” (238), but the effort falls flat. After 230 pages of often virulent argument against fundamentalism, the arrival of President Obama in these pages seems too much like the messiah descending on a cloud, come to make an optimistic end of a long and dreadful period. The President is the repository of Richards’ electoral hopes, and the most promising figure of a generation, but he is the anti-patriarchal man no more than Justice Thomas is his antithesis. It is curious that Presidents Reagan, Bush I, and Bush II are mentioned frequently by Richards but never Carter or Clinton who, one imagines, have proven a disappointment to anybody waiting for the destruction of fundamentalism. The presidency nowadays is no place for revolutionary figures.

Ultimately President Obama is irrelevant to the book for the subject is not him, but the author. Richards himself is the anti-patriarchal man. He is the one who has struggled for the cause of reason; it is he who is celebrated by the work, and justly. Fundamentalism in American Religion and Law is not only a scholarly work but an intellectual autobiography. Where it is unreasonable and infuriating, there Richards is unreasonable and infuriating. Where it is learned, passionate, and moving, so also is the man.